Former NSA Lawyers Attack Senator Wyden For Hinting At NSA Surveillance Excesses That Are Now Confirmed

from the secrecy-at-all-costs dept

For many, many years we've covered Senator Ron Wyden's seemingly quixotic attempts to signal to the American public (and press) that the NSA was doing a hell of a lot more surveillance than most people believed, even those who were carefully reading the laws. Because secrecy rules meant that he couldn't directly reveal what he'd learned while on the Senate Intelligence Committee, he had to issue vague statements, documents and speeches hinting at things that were going on that he couldn't actually talk about. Of course, now that Ed Snowden leaked a bunch of documents, it's shown that Wyden was absolutely correct in what was going on (and that the American public wouldn't like it).

You'd think that would lead people to have a lot more respect for the incredible efforts he went through to alert people to these issues without breaking the secrecy laws. And, in fact, many more people are aware of those efforts. The Washington Post has a nice article about Wyden's attempts to bring these issues out and to get a real debate going on them.

However, towards the end, the reporter talks to two different former top lawyers at the NSA, who both appear to be really, really angry about Wyden daring to suggest to the public that the NSA wasn't playing straight with the American public. First up, we've got Stewart Baker, the former NSA General Counsel and top Homeland Security official, who is so anti-civil liberties and pro-surveillance that he's almost a caricature of himself -- including claiming that the Boston bombings prove that Americans need less privacy and that civil libertarians complaining about too much surveillance are the real cause for the September 11 attacks.

"I would characterize what he's been doing as trolling for leaks. And hinting at the kinds of leaks that he wants to see," said Stewart A. Baker, a former official at the NSA and the Department of Homeland Security. "He's directed everybody's attention — who didn't sign the oath that he signed — to places where they might look."

Oh really now? These "leaks" wouldn't be necessary if the NSA and its lawyers weren't reinterpreting the law to collect the data on every phone call Americans make. He wasn't "trolling for leaks," -- he was alerting the American public to the sneaky tricks that the NSA has been using to violate the 4th Amendment and collect massive databases on Americans.

Another former NSA lawyer is also quoted in that same article attacking Wyden for his (now infamous) questioning of James Clapper, in which Clapper flat out lied to Wyden, saying that it was untrue that the NSA collects information on millions of Americans.

This tactic has been criticized by people close to the intelligence community. Joel F. Brenner, a former NSA senior counsel, called it a "low dishonorable act" in a recent post at the blog Lawfare. Brenner objected to Wyden "putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information."

Really? A "low dishonorable act" for asking a rather basic question of the Director of National Intelligence? No, I'd argue that collecting data on every single American's phone calls is a "low dishonorable act." Furthermore, I'd argue that flat out lying to Congress about that collection of data is a "low dishonorable act." But asking the Director of National Intelligence for a straight up answer on what the NSA is doing, which clearly contradicts the plain meaning and intention of the Patriot Act? That's not a "low dishonorable act" at all. As for the claim that this put Clapper in an "impossible position," that's clearly untrue. Clapper could have easily noted that he had answered (or that he would answer) in a classified manner if there really was a legitimate reason for that info to be classified (of course, there never was such a reason).

These attacks are really incredible, and show the lack of shame these former NSA lawyers have. The revelations from Snowden have made it clear that Wyden was doing a real public service, in highlighting massive abuse by the NSA, and now that's public. These lawyers may not like that it's public, but that's not Wyden's fault. The information was going to come out at some point no matter what. Wyden himself points out that this was never a dirty trick, but just exactly what Congress is supposed to be doing in its oversight job:

"You can't do vigorous oversight if the leaders of the intelligence community are misleading the American people, and Congress, in public hearings," Wyden said.

This is obviously true, but the likes of Stewart Baker and Joel Brenner apparently believe that no one in the government -- even those in charge of overseeing the NSA efforts -- should be allowed to call out the NSA for its abuse because that might actually lead to proof that the abuse existed. In other words, they want no actual oversight at all.

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I don't think so. People in general pay a lot more attention to the president than to senators. The real battle is to get the people to care about what their government is doing and from that perspective, he would be a lot more effective.

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Sadly they try to excuse their trampeling on the constitution by saying it is in the interest of the country. I am sorry but the constitution was put in place to prevent anyoen from abusing their powers given to them by the public.

To say that there are reasons to collect all data is not false, there are valid reasons, just as jack bower showed us there are times when a little torture can prevent terrorist attacks.
The problem is that in a modern country with the rule of law it is not acceptable to do just about anything to stop crimes being committed. Damn if it was up to these guy's would they determine that killing all black males between the ages of 10 to 30 would stop 90% of the crime in the US. Yes it maybe would drop the crime rate but that would be against what everyone sees as doing the right thing.

Now going right against everything i have just said, i do believe that if the NSA has evidence of a group of people possibly committing crimes they should have the ability to go to a court with their evidence and ask for the right to monitor their communications. But that those communications should be restricted to only thse suspected of planning or having commited a crime.

And as for the Boston Bomber... they had all of the monitoring in place at the time of the bombings , why the hell did they not catch them...this more than anything shows that with too much monitoring the real crimes are being missed. If the NSA had monitored their lines when the Russian Intelligence Department advised of the suspicions they had they would have stopped this attack, but they were probably so busy listening in to what the President and congress is saying they ignored it.

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These people have had a locked job: Finding holes for any kind of surveillance to get through FISC and protecting secrecy. If you have been in the system for too long and are a lawyer with the severe biases that job inevitably brings, I can see why they are finding "holes" in oppositions arguments. It is just too bad for them, that defending an act the person of interest characterizes as a mistake, is advocating for an indefensible act.

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No just arrest them and hold them in each in solitary confinement for 3 years while they wait for a trial. In the mean time, see how many charges you can pile on. Just like they did with Bradley Manning.

Keep Wyden where he's better off

Once elected, a President doesn't have much input into laws being passed-that's a separate branch of the government and he's not allowed to do so.

Keep Wyden and Udall where they can do more work and get more done..but make sure they're not impeded by the Republicans who would rather have everything swept under the rug.

As for the article: of course the lawyers for the NSA are going to defend the indefensible! That was their job, after all-to aid and abet illegal and unconstitutional acts while being paid by the US taxpayer.

They should shut up before they're deposed before the Senate Intelligence committee for information regarding what they did, saw and said during their employment.

And they should remember that lying to Congress is a crime-although nobody ever takes that seriously, either.

Re: Keep Wyden where he's better off

Once elected, a President doesn't have much input into laws being passed-that's a separate branch of the government and he's not allowed to do so.

The President may not have much input into the laws, other than veto powers, but they do have direct responsibility for their Cabinet and Department positions. They may not be able to fund/defund them, but they certainly can control them.

The President can make the NSA behave just as much as the President can ask the IRS to investigate Tea Party groups.

Re: Keep Wyden where he's better off

"Once elected, a President doesn't have much input into laws being passed"

You are very mistaken here. The President proposes laws all the time. And say Congress decides right now to defund the spying? Obama will veto it. The difference between needing half and needing two-thirds is HUGE. Way more important than a single Senator.

Now to mention that the President is, you know, in charge of the entire executive branch. The NSA, the CIA, the FBI, the DHS, the Justice Department. He could shut down any spying program on his say-so alone.

"but make sure they're not impeded by the Republicans who would rather have everything swept under the rug."

Or the Democrats who would do the same thing. This is not a Republican/Democrat issue, and that should have been clear long ago. Bush started it, but Obama could have ended it at any time... but chose to continue it, and is continuing it even now.

Re: Re: Keep Wyden where he's better off

The last part of this statement is very true. Politicians, both Republican and Democrat, are very good at dividing the public. It's in their best interest to do just that. We, the people, need to stop looking at party affiliation and begin looking at candidates that can, and will, uphold the values of our Constitution. To do things that are best for our country as a whole and not sell out to groups with the most money. I'm a registered Democrat, from the state of Oregon...voted for Senator Wyden, but I will begin looking very closely at our public servants and voting accordingly. If I see a Republican that I believe, through past deeds, will serve us better than his/her election day Democratic rival...I will cast my vote for him/her. I suggest everyone scrutinize who they cast their vote for and stop jumping on a particular bandwagon just because.

Google excesses confirmed too and will be more in future!

Modesty forbids me mentioning names, but a number of comments have been made by someone here regarding Google (see below for most recent) and it's near certain that in future more will be out. Meanwhile, Mike and minions go on as if only need to worry about the gov't, ignoring the actually worse day-to-day corporate surveillance.

Emphasis added:

'Greenwald told ABC News’ George Stephanopoulos. “And what these programs are, are very simple screens, like the ones that supermarket clerks or shipping and receiving clerks use, where all an analyst has to do is enter an email address or an IP address, and it does two things. It searches that database and lets them listen to the calls or read the emails of everything that the NSA has stored, or look at the browsing histories or Google search terms that you’ve entered, and it also alerts them to any further activity that people connected to that email address or that IP address do in the future.”

Re: Google excesses confirmed too and will be more in future!

Re: Google excesses confirmed too and will be more in future!

What you are saying is correct but you miss the point. First of all, these companies have absolutely no choice in the manner. Do some research on the outlook.com leaks. Basically, Microsoft had to turn over the keys to decrypt all outlook and Hotmail emails and had no choice. Furthermore, the only reason the government goes the corporate route is to offload work and cost onto these private companies. They are without a doubt filtering at the isp level as well. If you are concerned about Google consider the fact that EVERYTHING you do goes through your isp and then, generally through at least one more higher tier isp. There is a reason the original intention was that dns servers would be spread out globally and they ended up in the u.s. This has always been the plan. The most outrageous (or a very outrageous) part of all of this is that my tax dollar goes toward storing that data. We are funding all of this and the cost is astronomical.

The Oath He Signed...

"He's directed everybody's attention — who didn't sign the oath that he signed — to places where they might look."

Would that be the oath Mr. Wyden and Mr. Baker both swore and signed, to "Protect the Constitution of the United States, from all enemies, foreign and domestic"? Or some other oath? Seems to me Mr. Baker is forgetting that that oath of service trumps all other oaths. Secrecy should be about protecting information which saves our soldiers/sailors lives and protects the people and the Constitution, not about saving some politician's face or destroying the Constitution.

Stupid lawyer....

"This tactic has been criticized by people close to the intelligence community. Joel F. Brenner, a former NSA senior counsel, called it a "low dishonorable act" in a recent post at the blog Lawfare. Brenner objected to Wyden "putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information."

What Wyden did was use the rules of the game to checkmate Clapper, except clapper then violated the rules of the game by pretending his king-piece didn't exist. The entire POINT of these rules is to keep everyone on the level. No you can't reveal classified shit, and no you can't lie to Congress. When you get cornered like that, something has to give. All this indicates is that I imagine Wyden is exceptionally good at chess.

Well, I suppose it also indicates that NSA lawyers like to upend the playing board when they lose, too....

Re: Re: Stupid lawyer....

Or, as someone else pointed out in another thread, he could have said, before he started testifying, "If I'm asked a question where either answering truthfully or refusing to answer would reveal classified information, I'm instead going to lie through my teeth. If that's not acceptable, I'm not going to testify at all."

Re: Stupid lawyer....

No you can't reveal classified shit, and no you can't lie to Congress. When you get cornered like that, something has to give.

The only honest thing Clapper could do would be to decline to answer in a non-classified context. However, that would make it clear the answer was more or less yes, the NSA is spying on Americans. That's what these guys are mad about - Wyden forced him to either lie, or reveal more than they wanted to. It's telling that he chose to lie.

9/11

The evidence (not the disinformation) shows quite clearly that 9/11 was an inside job. It was perpetrated by the military industrial complex, the CIA, and criminal groups within the FBI and military. Link

Re: 9/11

perhaps the best place for people like Stewart Baker and Joel Brenner is N.Korea or another similar country where there is no freedom, no privacy and every move, every message, every phone call is monitored. i would hazard a guess that after about a week at most, these two and any other like-minded person put into that situation would be crying for mama to sell the pig and buy them out.
this type of surveillance is always touted as being ok when the ones saying it, aren't affected by it!!

NSA stands for...

In all fairness

Joel F. Brenner, a former NSA senior counsel, called it a "low dishonorable act" in a recent post at the blog Lawfare.

The silliness of that aside (it's hardly an impossible position as Clapper could have just declined to answer), Brenner is saying that it is a "low and dishonorable act" for a Congressman to do the job we're paying him for.

In the words of Captain Picard...

"'With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably.' Those words were uttered by Judge Aaron Satie as wisdom and warning. The first time any man's freedom is trodden on, we're all damaged."
- From the episode "Drumhead"

Star Trek's relevance in the face of the problems we face today continues to impress me. I've been trying for a while to explain to my mom why I'm so bothered by all the programs that have been revealed by the leaks. But I think, maybe, I can finally lay it all out for her this weekend... starting with a nice episode of Star Trek.

the Oath?

So let me see if I understand this correctly, the "oath" to not divulge classified material trumps the oath to "faithfully execute the duties of your office" and the oath to "defend and UPHOLD the Constitutiton"? Hmmmmmmmm.

Legal obligations

Brenner objected to Wyden "putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information."

Hence Clapper's "least untruthful" comment. It seems that he had to tell that lie of omission when answering Wyden's questions since he's bound by law not to talk about classified intel, which I suppose somehow overrides his obligation to tell Congress the truth.

Stupid, but that's how it probably works.

That being said, if government didn't have the "we must classify everything, regardless of what it actually is!" mentality, they might not have this problem.

No one from the public can believe anything the government is putting out. With very few exceptions, that includes all of congress, the executive branch, and the FISA court. So what part of transparency exists? Near as I can tell it, none.

You know the government is in trouble when it has to change what words mean to get what it wants.

What it has done for certain, has been to show that government is totally out of touch with it's citizens and I for one am one the verge of stating that it doesn't have my consent to govern. By far, I am sure I'm not the only one.

This paranoia, lying about what laws mean, whenever they can be bothered to tell that definition, and hiding what is being done in our name under a blanket of secrecy, all amounts to one thing actually. Breaking the intent of the Constitutions and the Bill of Rights so as to ignore them. Our government has become a mockery.

Ahh.. yes, he could

"Because secrecy rules meant that he couldn't directly reveal what he'd learned while on the Senate Intelligence Committee, he had to issue vague statements, documents and speeches hinting at things that were going on that he couldn't actually talk about."

Members of the senate enjoy a little privilege called immunity. Had he revealed the info on the Senate floor, he would have had been immune to prosecution.

Mr. Brenner made an absolutely fair point in his commentary when he discussed what Mr. Wyden could have done, but chose not to for the basest of political reasons...make someone else take the fall so that you can remain above the fray.

Mr. Wyden had several viable options that were appropriate, and in some instances heroic. He chose to pursue none of them because, of course, that would have exposed him to risk. In my book he acted cowardly.

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Mr. Brenner made an absolutely fair point in his commentary when he discussed what Mr. Wyden could have done, but chose not to for the basest of political reasons...make someone else take the fall so that you can remain above the fray.

I'm not so sure. Perhaps Wyden's hands aren't entirely clean, but personally I'm glad he approached it as he did. Now the truth is out, and he's still around to keep digging. I don't think the country would be better off with him out of power.

It's still telling that Clapper decided to lie, rather than decline to answer. Yes, declining to answer would have tipped everyone off, but we can clearly see by his response that keeping secrets is more important to Clapper than telling the truth or following the rules. I'm sure his bosses are delighted by that - secrecy obviously is the top priority at the NSA, above matters such as truthfulness, the Constitution, and heeding Congressional oversight. But again, I don't think the nation is best served by an intelligence agency that is willing to justify almost anything in the name of secrecy.

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Your comments is understandable, but it should not be passed over that the truth could have come out had Mr. Wyden acted upon his principles and taking the admittedly difficult step of exposing himself to some degree of risk if he chose to "spill the beans" himself, as opposed to maneuvering Clapper into a box that Wyden well knew put Clapper at personal and professional risk, all the while allowing Wyden to remain squeaky clean and risk-free.

Wyden already knew the answer, as did every other member of the Senate panel. As Brenner notes, Wyden had options. Unfortunately, as seems to be the case with the large majority of politicians, he chose someone else to be the sacrificial lamb to preserve his own hide. True leaders step up to the plate and bear the consequences. Clearly, Wyden is not a leader.

Importantly, I am not an NSA apologist. If it broke the law then the full weight of the law should be brought to bear on those persons in the NSA who chose to do so. I refuse, however, to give Wyden a pass under these circumstances. Nobody ever said that being a leader is easy, and being a leader is fraught with responsibilities, for which Wyden is clearly not up to the task.

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How is that? If he had declined to answer in open session, he would have been following all the rules to the letter.

Nobody ever said that being a leader is easy, and being a leader is fraught with responsibilities, for which Wyden is clearly not up to the task.

I just want to point out that there are probably a total of zero politicians in Washington who meet that kind of standard. People willing to sacrifice their careers for principles they believe in. That just doesn't happen anymore, so while I won't say you're wrong, it's kind of pointless to condemn Wyden when whoever would replace him if he'd gotten himself removed from office would almost certainly be worse. Now at least we have someone who's looking out for his career and what he believes is right for the public, rather than only his career.

Your points are well made, and of course I recognize how things work in the real world...politics and elsewhere.

My original comment was motivated by Masnick's vitriol that in my view maligned two individuals unfairly, and especially the terribly uninformed screed directed at Mr. Brenner. Masnick would have done well to read Mr. Brenner's comments with an open mind. While perhaps he may disagree, at the very least he would have been forced to recognize that in any particular situation there are always two sides that each have merit.

As for Mr. Wyden, I still view his actions as cowardly, for many of the reasons mentioned in Mr. Brenner's commentary. Given his actions in this matter, I have to wonder what would happen if Mr. Wyden was presented with a situation where sacrificing his career was necessary for a greater principle benefiting the public good. His actions in this matter suggest that such sacrifice is not one he is inclined to incur. Mind you, I am not talking about what the various federal agencies have been doing. My comments are limited solely to how Mr. Wyden acted in this specific matter. I am also mindful of other activities by Mr. Wyden that truly are motivated by a sincere concern for his view of the public good. In those matters, however, I can recall of no instance where Mr. Wyden hid in the shadows and acted in such a manner as to force someone else to take the fall.